Privilege

• Author: David M. Paciocco/Lee Stuesser
• Pages: 217-280

217

Cha pter 7

PR I VI LEGE

1. GeNeraL prINCIpLeS

Privilege, as a rule of evidence, arises at trial and belongs to a “wit-

ness.” The witness, although required to take the stand, by virtue of

privilege can refuse to answer certain questions or refuse to produce

certain documents. In Descôteaux v. Mierzwinski, the Supreme Cour t

of Canada recogni zed th at a “privilege” or a “right to conf‌identiality”

was a “substantive rule” giv ing a person protection from d isclosure of

communications outside the trial setting.1 Descôteaux v. Mierzwinski

concerned solicitor-client communications, but there is little reason

why this substantive rule should not apply to all privileges, provid-

ing protection for conf‌idential communications in side and outside t he

courtro om.

Privilege, unl ike other rules of exclusion, is not designed to facili-

tate the truth-f‌inding process. In fact, privilege is inimical to the search

for truth in that it leads to the loss of otherw ise releva nt and reliable

evidence. It is for this re ason that the f‌inding of a priv ilege is to be ex-

ceptional. Dean Wigmore provided the se words of caution:

It follows, on the one hand, that all pr ivileges of exemption from thi s

duty are exceptional, and are t herefore to be discountenanced . . .

judges and lawyers a re apt to forget this exceptional natu re. The pre-

1 (1982), 70 C.C.C. (2d) 385 (S.C.C.).

THE LAW OF EVIDENCE218

sumption against t heir extension is not observed i n spirit. The trend

of the day is to expand t hem as if t hey were large and fundamental

principles, worthy of pursuit into the remotest analogies. This at-

titude is a n unwholesome one. The invest igation of truth and the

enforcement of te stimonial duty dema nd the re striction, not the e x-

pansion, of these pr ivileges.2

Compelling reasons must e xist before a privilege is recognized.

There must b e some overriding social concern or value that warrants

the loss of probative evidence.3 Such a determination is more a matter

of policy than of proof. The a ssumption underlyi ng a privilege i s that

it does indeed go to protect some societal interest, which is an assump-

tion not open to ready proof. For example, with respect to a privilege

for religious communicat ions, how does one asses s the importance or

need to preserve such conf‌idences? In R. v. Gruenke, the Supreme Court

of Canada rejected the creation of a blanket privilege for religious com-

munications.4 However, L’Heureux-Dubé J., in dissent, wa s of the view

“that there is a human need for a spiritual counsellor, a need which, in

a system of religious freedom and freedom of t hought and belief, must

be recognized” a nd “must supercede [sic] the truth-searching policy.”5

How does one prove or challenge this view?

What is involved is a balancing of the broader “social interest”

against the principle that court s should be provided and have available

all relevant evidence. To this end, Wigmore fa shioned four conditions

to serve as the foundation for determining all such privileges whether

claimed or established:

(1) The communications must originate in a conf‌idence that they will

not be disclosed.

(2) This element of conf‌identiality must be essential to the full a nd

satisfactor y maintenance of t he relation between t he parties.

(3) The relation must be one which in the opinion of the community

ought to be sedulously foste red.

(4) The injury that would inure to the relation by t he dis closure

of the communications must be greater than the be nef‌it thereby

gained for the correct di sposal of litigation.6

2 J.H. Wigmore, Eviden ce in Trials at Common Law, 3d ed. rev. by J.T. McNaugh-

ton, vol. 8 (Boston: Little, B rown, 1961) s. 2192 [emphasis in origina l].

3 R. v. Gruenke (sub nom. R. v. Fosty) (1991), 8 C.R. (4th) 368 at 392 (S.C.C.),

L’Heureux-Dubé J.

4 Ibid.

5 Ibid. at 403.

6 Wigmore, above note 2, s. 22 85 [footnotes omitted].

Privi lege 219

The “Wig more test” represents a “utilitari an” approach to privil-

ege, in that the pr ivileges are created to serve the g reater public good.7

For example, the fact that a communication is made in conf‌idence is

not, standing alone, enough to create a privilege.8 Take the situation

where you share an intimate secret in conf‌idence with a friend, and

that conversation becomes relevant in a subsequent proceeding. The

communication was made in conf‌idence, but the broader social value in

preserving and maintaining friendships is not suff‌icient to override the

need to present the relevant ev idence at trial. Nevertheles s, in recent

years conf‌identiality or “protection of privacy” has been advanced as

a suff‌icient justif‌icat ion to found a privilege.9 The “privacy” model has

the potenti al to greatly broaden the scope for f‌inding privileges — far

more so than Wigmore would accept under his “utilita rian” model.10

1.1) “Class” Privileges and “Case-by-Case” Privileges

The Supreme Court of Canada in R. v. Gruenke made a distinction

between “class” and “case-by-case” privileges.11 For a cl ass privilege

there is a prima facie presumption th at the communications are priv-

ileged and inadmissible. The party urging admission must show why

the communications should not be pr ivileged. Cla ss privi leges are few

in numbers. Two of the most signi f‌icant are: (1) at common law — so-

licitor-client communications, and (2) under statute — spousal com-

munications. A third less-def‌ined class privilege applies to settlement

discussions between actual or contemplated litigants. With a case-by-

case privilege there is a prima facie assumption th at the communica-

tions are not privileged and are admissible. The party urging exclusion

must show why the communications are privileged. In order to deter-

mine whether privilege applies in a particular case, the Court accepted

the “Wigmore test” as a “general framework.”

7 E.W. Cleary, ed., McCormick on Evidence, 3d ed. (St. Paul, MN: West, 1985) s. 171.

8 D. v. National Society for th e Prevention of Cruelty to Children, [1978] A.C. 171 at

218, Lord Diplock.

9 See R. v. Gruen ke, above note 3, L’Heureux-Dubé J. (dissenti ng).

10 See, for example, V.(K.L.) v. R.(D.G.), [199 4] 10 W.W.R. 105 (B.C.C.A.), where a

privilege wa s found in diary entrie s. Leave to appeal to the Supreme Cour t of

Canada wa s granted; however, the case sett led and was never heard.

11 Above note 3.